He doesn't get the picture

Legislator's weak grasp on freedom of speech becomes Internet joke

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A lot of folks are now altering photographs of Augusta state Rep. Earnest Smith to make him look silly.

But nothing can compare to how he’s making himself look.

In supporting a fellow Democrat’s bill banning the “obscene” Photoshopping of a picture of someone else, which might be done to mock or tease someone or just have fun, Rep. Smith had this to say:

“No one has a right to make fun of anyone. You have a right to speak, but no one has a right to disparage another person. It’s not a First Amendment right.”

This is a lawmaker, folks.

It’s hard to believe, even in a state that gave rise to U.S. Rep. Hank Johnson – who once worried the island of Guam might tip over – that an American citizen would be so ignorant of our rights. It’s mind-boggling to think that people who help write our laws are that out to lunch.

Must we? Really? Must we refute the representative’s asinine assertion?

First, it should go without saying that Americans have a fundamental right to mock others. It’s an integral part of free speech; ridicule and satire simply cannot be boiled out and separated from free speech. It’s impossible.

And while parody and sarcasm are something of an art that probably shouldn’t be tried by amateurs, they are no less protected under the Constitution.

All you have to do to understand this simple fact is watch television for a day. The late-night shows alone are savage when it comes to teasing and even tormenting public officials and celebrities for their tomfoolery.

In truth, exposing incompetence, absurdity and nonsense with biting humor is an honored talent as old as civilization itself. It’s certainly a great American tradition, perhaps best exemplified by the beloved art of editorial cartooning.

But even if all this is lost on someone, there’s plenty of case law to be found. In one landmark case, the U.S. Supreme Court ruled unanimously that even the disgusting Hustler magazine was protected by the First Amendment in its lampooning of the Rev. Jerry Falwell.

You don’t have to be a lawyer to know of the case, either. It was quite widely covered in the news and debated in society. Where was Mr. Smith?

The representative’s position, and how ridiculously he supports it, will no doubt be fodder for much mocking about the land. Indeed, national news outlets began hearing about it this week, with one using a bit of understatement to conclude that Smith possesses “an unconventional grasp of the First Amendment.”

But his ignorance of the law and his arrogance toward his fellow Americans is not funny.
It is symptomatic of a tin-pot tyranny that would have the government decide what is and what isn’t allowable in our discourse. It’s the same kind of oppression that attempts to say you can’t publish cartoons of Mohammed.

The bill in question isn’t any more acceptable by banning photo manipulation that “causes an unknowing person wrongfully to be identified as the person in an obscene depiction.” Do you really want to leave it up to Earnest Smith to say what “obscene” is?

A people cannot be said to be truly free without the freedom to think and speak as he or she sees fit.

Some Americans understood that in the 1770s. Most understand it today.

Frighteningly, there are some roaming the halls of power even now who do not.

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Jon Lester
2438
Points
Jon Lester 02/15/13 - 02:31 am
11
3
As a matter of transparent government and public accountability,

I'm with you on this one. It's not the public's (or the media's) fault if elected officials either consciously say or do something stupid, or if they set themselves up for public humiliation by their own negligence. It shouldn't matter which party they belong to; everyone seemed to think high-profile gaffes by GOP candidates last year were fair game, so that should apply equally to Democrats, third-party activists and independents.

fedex227
11187
Points
fedex227 02/15/13 - 04:07 am
7
3
Must be a slow news day.
Unpublished

Can't believe you wasted as much space as you did on this guy. Were you looking to spark a debate on this issue? News flash- there are just as many idiot democrats in congress as there are republicans.

Techfan
6461
Points
Techfan 02/15/13 - 04:29 am
3
7
"Iffy" GOP Presidential

"Iffy" GOP Presidential candidate Donald Trump sues Bill Maher for joke about him.

Oklahoma GOP State Sen. Ralph Shortey introduced law to ban human fetuses for being used as flavor enhancers in food. He also intoduced one that would deny Oklahoma citizenship to children of ilegal immigrants born in the state.

GOP state representative Cathrynn Brown of New Mexico introducede a bill tomake it illegal for a woman to have an abortion after being raped because the fetus is evidence of the crime.

SC GOP State Senators Lee Bright and Shane Martin cosponsored bill that "TO PROVIDE THAT A FIREARM, FIREARM ACCESSORY, OR AMMUNITION MANUFACTURED AND RETAINED IN SOUTH CAROLINA IS EXEMPT FROM FEDERAL REGULATION UNDER THE COMMERCE CLAUSE OF THE CONSTITUTION OF THE UNITED STATES."

We could go on all day with examples from both sides, although lately the GOP seems to be leading in bad legislation (have to read and pass a test on Ayn Rand book to graduate high school? The "support bad fiction" bill.) This is just the blooper bill du jour. The AC editorial staff's going to be awful busy if they write an editorial for all of them.

Riverman1
90449
Points
Riverman1 02/15/13 - 06:37 am
5
1
Ridicule and Satire

“First, it should go without saying that Americans have a fundamental right to mock others. It’s an integral part of free speech; ridicule and satire simply cannot be boiled out and separated from free speech.

All I can do is smile when I read that and remember “bulbous” and “Caspar Milquetoast” when describing local elected officials as being deemed unacceptable.

Riverman1
90449
Points
Riverman1 02/15/13 - 08:26 am
5
0
Not So Fast

Let’s get into this posting on the internet of photoshopped pictures that the Chronicle apparently thinks is so harmless. So if someone ends up in a photo splattered across the internet smiling with another person, a donkey and a chicken, it’s okay? Where do you draw the line on that? Is it okay to construct a photo that is presented as real that makes someone appear fatter, uglier or nude?

Cartoons are obviously not real, but Rep. Smith is not talking about those. As far as determining whether something is obscene, to quote Supreme Court Justice Potter Stewart, “I know it when I see it.”

To illustrate, there are explicit photos around the internet that many have seen of a local ex-elected official’s wife. I have no idea of knowing if they are real, but I’d say she is harmed by the “photos” and it’s a good possibility they are not real. We actually have no way of knowing unless she has signed a release, implying they are real and I’ll bet she hasn’t. Rep. Smith has a valid concern.

Techfan
6461
Points
Techfan 02/15/13 - 07:05 am
5
0
Good point river.

Good point river. They could photoshop folks into some very compromising positions.

Techfan
6461
Points
Techfan 02/15/13 - 07:17 am
4
1
There should be some sort of

There should be some sort of exemption for parody, if designated as such.

Riverman1
90449
Points
Riverman1 02/15/13 - 07:52 am
2
1
Techfan, exactly. We all know

Techfan, exactly. We all know what's being depicted as real. We all also know what's obscene by using Justice Potter's standard. Rep. Smith is 100% right. A cartoon or joke photo is not what he's talking about. They can be exempted from his bill with common sense.

To quote from his bill: "“causes an unknowing person wrongfully to be identified as the person in an obscene depiction.”

seenitB4
93609
Points
seenitB4 02/15/13 - 07:57 am
2
2
A case

Thursday, August 16, 2012

Associated Press

CLEVELAND

A TV newswoman in Ohio has won a lawsuit against Hustler Inc. over publication of a photograph showing her dancing naked in a wet T-shirt contest.

The Plain Dealer reports a federal jury on Thursday sided with Catherine Bosley and her husband over an image taken at a Florida bar in 2003. The jury awarded them $135,000 plus attorney fees.

Bosley and her husband gained rights to her contest photos after a photographer posted them online. She resigned from WKBN-TV in Youngstown, and now works at WOIO-TV in Cleveland.

Hustler Magazine printed one of the photos in 2006. The 2008 lawsuit claimed the publication failed to get Bosley’s permission to print the photo. Hustler’s attorneys argued they didn’t need permission.

It’s unclear if Hustler Inc. will appeal the decision.

rmwhitley
5547
Points
rmwhitley 02/15/13 - 07:58 am
0
0
politician,
Unpublished

lowyer. What's the difference? They write the laws for "us" common folk as they galavant in the spectacle that is them.

seenitB4
93609
Points
seenitB4 02/15/13 - 07:59 am
2
1
Another case

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), was a United States Supreme Court case in which the Court held, in a unanimous 8–0 decision (Justice Anthony Kennedy took no part in the consideration or decision of the case), that the First Amendment's free-speech guarantee prohibits awarding damages to public figures to compensate for emotional distress intentionally inflicted upon them.

Thus, Hustler magazine's parody of Jerry Falwell was deemed to be within the law, because the Court found that reasonable people would not have interpreted the parody to contain factual claims, leading to a reversal of the jury verdict in favor of Falwell, who had previously been awarded $150,000 in damages by a lower court.

soapy_725
43949
Points
soapy_725 02/15/13 - 08:53 am
0
0
You don't have joking in the former Soviet Union
Unpublished

Stalin coined the phrase "politically incorrect". And promptly sent thousands to death camps. We know from history that he was a mental giant. LOL LOL

Knowledge and wisdom are not listed on the required qualifications for political leader.

RMSHEFF
17877
Points
RMSHEFF 02/15/13 - 08:56 am
4
2
Never underestimate the

Never underestimate the ignorance of our elected officials, after all most are products of poor public schools. This may say more about the people that put him in office than about him. Thank God people like this are not in sufficient numbers to "fundamentally change" our constitution.

Little Lamb
47950
Points
Little Lamb 02/15/13 - 09:53 am
6
2
Good Editorial

There was a good balance of source and commentary on the source. There was a correct amount of indignation about Rep. Smith's thought process and conclusion, while never denigrating Smith, the person.

If Rep. Earnest Smith has one ounce of discernment, if he reflects for one moment on the consequences of the bill he co-sponsors; he will call a press conference, apologize to all Georgians for his lack of understanding, announce he no longer believes that one person does not have the right to make fun of another person, and then withdraw his co-sponsorship of this odious bill.

Little Lamb
47950
Points
Little Lamb 02/15/13 - 10:03 am
2
2
Turning Blue

However, I am not holding my breath for said press conference to occur.

- - - - - - - - - - - - - - - - - - - - - - - - -

Addendum: Techfan posted:

There should be some sort of exemption for parody, if designated as such.

Whoa! This gets it backward. Techfan seems to be saying that the bill abridging freedom of speech (also including freedom of the press) would be good law as long as it explicitly exempted designated parody. That gets it backward. The approach we have now gets it correct; i.e., we have freedom of speech except for when it causes actual damage to someone (i.e., incitement to riot, slander & libel). Even then, you have the right to be stupid in your speech, you just have to pay the penalty for such stupidity.

By the way, in the crude wording of Rep. Smith's bill (where he lumps obscenity and nudity in the same sentence) he would make a misdemeanor of all photo edits in which there is nudity, whether a judge thought the edits obscene or not.

deestafford
30378
Points
deestafford 02/15/13 - 10:08 am
3
1
I would bet a dollar to a doughnut that

this politician has never read the entire Constitution, not just the Bill of Rights, and it would be pie in the sky to think he has read any history of the debates on the Constitution as it was being written. Not only would that apply to him, I would wager that is true for 90%+ of all politicians and elected officials. Shoot, you can graduate from some of the "elite" law schools and never be made to take a course on Constitutional Law.

Riverman1
90449
Points
Riverman1 02/15/13 - 10:34 am
2
1
"The bill in question isn’t

"The bill in question isn’t any more acceptable by banning photo manipulation that “causes an unknowing person wrongfully to be identified as the person in an obscene depiction.” Do you really want to leave it up to Earnest Smith to say what “obscene” is?"

Why if this bill passes would it not be up to judges to determine whether there is a violation of this law as there is with every other law? Why is it only up to Smith?

Jane18
12332
Points
Jane18 02/15/13 - 10:36 am
2
2
Little lamb 9:53am

I thinking Mr. Smith does Not know how to discern.................

Darby
28356
Points
Darby 02/15/13 - 11:28 am
4
3
Have to agree, IN PART, with Techfan when he says.....

"We could go on all day with examples from both sides, although lately the GOP seems to be leading in bad legislation"...

Just listing a few conservative kooks, does not an agenda make. First of all, people like Trump are not leaders of the GOP, they are opportunists and hangers-on. Nut cases who want to force raped women to carry a baby to term are about as rare as moon rocks on sale at Wal-Mart.

Go back and look. Most of the examples given are not even legislation. They are suggested legislation by back benchers who have no role in GOP leadership. They do make good "strawmen" for prog/libs to set up to be knocked down.

On the other hand, if you want to talk about bad legislation, then look no further than Obama's wasted Stimulus boondoggle, his vendetta against the "richest Americans", force feeding the American economy on green energy which the free enterprise system will develop on its own when it's economically feasible. Adding hundreds of thousand of welfare recipients to the roles even as the economy continues to tank. Forcing businesses to accept a large increase in the minimum wage, guaranteeing large scale failures in the following months.

And that's not even the tip of that iceberg. And this guy talks about "bad legislation" That's not funny, it's pathetic.

whatmistake
100
Points
whatmistake 02/15/13 - 01:08 pm
6
0
You've heard of the

'low information voter'. Meet the 'low information legislator'. God help us all.

Little Lamb
47950
Points
Little Lamb 02/15/13 - 01:42 pm
1
0
Low Information

Amen to that, WhatMistake!

Riverman1
90449
Points
Riverman1 02/15/13 - 02:50 pm
1
0
What Am I Missing? Help Me Out

Let me make sure I’m getting this right. I’m often the last one to get something and want to know if I’m wrong, so someone please help me out. If someone photoshops Rep. Smith’s face onto a nude body and puts it on the internet, it is okay? Anyone’s face in any fabricated nude or sexual situation online is okay? Isn’t that what Smith is complaining about and wants a law against? Yes? No? Middle?

Little Lamb
47950
Points
Little Lamb 02/15/13 - 03:04 pm
1
0
I think so

You are correct, RM, that Rep. Smith does not want anyone to be able to post a doctored photo that is deemed "obscene" or that involves nudity into a public forum. That would include internet, magazine, newspaper, flyer, book, etc. It might even include cable TV. It might even include e-mail. You just never know where these restrictions on freedom of speech and freedom of press might lead.

Riverman1
90449
Points
Riverman1 02/15/13 - 03:11 pm
1
0
LL, thanks for the response,

LL, thanks for the response, but I'm not sure I understand why being worried about such public posting of false nude or obscene photos is wrong? If the courts determine what is obscene, why is that a bad thing? Can I photoshop a pic of Austin and post it? Hey, wait a minute, maybe this is not such a bad idea.

Darby
28356
Points
Darby 02/15/13 - 03:23 pm
2
1
Rep. Earnest Smith really need to get a sense of humor....

Is it really a good thing to Photoshop a person's face onto a nude body to make fun of them?

No. Is it legal? Absolutely! Now if they were trying to perpetrate a fraud, passing the photo off as legitimate, then yeah, it would be illegal.

Is Smith that bent out of shape at Bill Maher for calling Palin and other Republican women c*nts and [filtered word]? I'm thinking he got a real charge out that. I know he never protested it. I guess it all depends on whose ox is being gored.

What about all the political cartoons depicting Bush as a monkey? There were dozens (probably hundreds) of those. All legal by the way. Not in good taste, but legal.

If Smith was offended, he has never made that clear.

Riverman1
90449
Points
Riverman1 02/15/13 - 03:27 pm
1
0
Darby, my old friend from

Darby, my old friend from that conversation about RW, should any nude photo of someone that's not real be legal? Was the photo of Smith not purported to be real?

Little Lamb
47950
Points
Little Lamb 02/15/13 - 03:26 pm
2
1
Legal Harm

It goes much farther than being offended, Darby. In order to be illegal, a published falsehood needs to cause actual, legal harm to the person — harm that he can put a monetary value on and sue in court.

However, Smith's outrageous claim that people who make fun of other people are not protected by the first amendment is dangerous. What will Smith be trying to outlaw next?

Riverman1
90449
Points
Riverman1 02/15/13 - 03:34 pm
1
1
LL, interesting comment, so

LL, interesting comment, so if it is a published falsehood it should be considered illegal? But your complaint is it needs to prove actual harm. That I can agree with. I guess it depends on whether it is harmful to view a false photo of someone in various situations.

Little Lamb
47950
Points
Little Lamb 02/15/13 - 03:36 pm
1
1
Sequence

Walter Jones broke this story two or three days ago. In his Morris News story it appears that the Photoshopped pictures of Earnest Smith were created and published after Smith co-sponsored a bill by a fellow Democrat lawmaker. The fake nude photos of Smith would never have existed if Smith had not pre-emptively attacked the First Amendment.

Smith caused his own offense by attacking a Constitutional Right.

Riverman1
90449
Points
Riverman1 02/15/13 - 03:37 pm
1
1
If it's a "legal wrong" and

If it's a "legal wrong" and not a dollar of damages is awarded, it doesn't make something not a criminal action. It may affect a civil award however.

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